Leased Commercial Access; Modernization of Media Regulation Initiative, 30639-30644 [2018-14014]
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Access Stimulation, it shall within 45
days of commencing Access
Stimulation, or by [date 45 days after
effective date of the final rule],
whichever is later, notify in writing all
Intermediate Access Providers which it
subtends and Interexchange Carriers
with which it does business of the
following:
(1) That it is a local exchange carrier
engaged in Access Stimulation;
(2) That it will either:
(i) Obtain and pay for terminating
access services from Intermediate
Access Providers for such traffic as of
that date; or
(ii) Offer direct-trunked transport
service to any affected Interexchange
Carrier (or to an Intermediate Access
Provider of the Interexchange Carrier’s
choosing); and
(3) To the extent that the local
exchange carrier engaged in Access
Stimulation intends to comply with
paragraph (a) of this section through
electing the option described in
paragraph (a)(2) of this section,
designate where on its network it will
accept the requested direct connection.
(c) Nothing in this section creates an
independent obligation for a local
exchange carrier to construct new
facilities other than, as necessary,
adding switch trunk ports.
(d) In the event that an Intermediate
Access Provider receives notice under
paragraph (b) of this section that a local
exchange carrier engaged in Access
Stimulation will be obtaining and
paying for terminating access service
from such Intermediate Access Provider,
an Intermediate Access Provider shall
not bill Interexchange Carriers
terminating tandem switching and
terminating switched transport access
for traffic bound for such local exchange
carrier but, instead bill such local
exchange carrier for such services.
(e) Notwithstanding any provision of
this section, any carrier that is not itself
engaged in Access Stimulation, as that
term is defined in § 61.3(bbb) of this
chapter, but serves as an Intermediate
Access Provider with respect to traffic
bound for an access-stimulating local
exchange carrier, shall not itself be
deemed a local exchange carrier
engaged in Access Stimulation or be
affected by this rule other than
paragraph (d) of this section.
■ 4. Amend § 51.917 by revising
paragraph (c) to read as follows:
§ 51.917 Revenue recovery for Rate-ofReturn Carriers.
*
*
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*
(c) Adjustment for Access Stimulation
activity. 2011 Rate-of-Return Carrier
Base Period Revenue shall be adjusted
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to reflect the removal of any increases
in revenue requirement or revenues
resulting from Access Stimulation
activity the Rate-of-Return Carrier
engaged in during the relevant
measuring period. A Rate-of-Return
Carrier should make this adjustment for
its initial July 1, 2012, tariff filing, but
the adjustment may result from a
subsequent Commission or court ruling.
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[FR Doc. 2018–13699 Filed 6–28–18; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 76
[MB Docket Nos. 07–42 and 17–105; FCC
18–80]
Leased Commercial Access;
Modernization of Media Regulation
Initiative
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the
Commission seeks to update its leased
access rules as part of its Modernization
of Media Regulation Initiative. First, the
Commission tentatively concludes that
it should vacate its 2008 Leased Access
Order, which the U.S. Court of Appeals
for the Sixth Circuit has stayed for a
decade in conjunction with several
judicial appeals of the order. Second,
the Commission seeks input on the state
of the leased access marketplace
generally and invites comment on ways
to modernize its existing leased access
rules.
DATES: Comments are due on or before
July 30, 2018; reply comments are due
on or before August 13, 2018.
ADDRESSES: You may submit comments,
identified by MB Docket Nos. 18–80 and
17–105, by any of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s website: https://
fjallfoss.fcc.gov/ecfs2/. Follow the
instructions for submitting comments.
• Mail: Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
• People with Disabilities: Contact the
FCC to request reasonable
SUMMARY:
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30639
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by email: FCC504@fcc.gov
or phone: (202) 418–0530 or TTY: (202)
418–0432.
FOR FURTHER INFORMATION CONTACT: For
additional information on this
proceeding, contact Diana Sokolow,
Diana.Sokolow@fcc.gov, of the Policy
Division, Media Bureau, (202) 418–
2120.
This is a
summary of the Commission’s Further
Notice of Proposed Rulemaking, FCC
18–80, adopted on June 7, 2018 and
released on June 8, 2017. The full text
is available for public inspection and
copying during regular business hours
in the FCC Reference Center, Federal
Communications Commission, 445 12th
Street SW, Room CY–A257,
Washington, DC 20554. This document
will also be available via ECFS at https://
fjallfoss.fcc.gov/ecfs/. Documents will
be available electronically in ASCII,
Microsoft Word, and/or Adobe Acrobat.
Alternative formats are available for
people with disabilities (Braille, large
print, electronic files, audio format), by
sending an email to fcc504@fcc.gov or
calling the Commission’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
SUPPLEMENTARY INFORMATION:
Synopsis
1. In this Further Notice of Proposed
Rulemaking (FNPRM), we seek to
update our leased access rules as part of
the Commission’s Modernization of
Media Regulation Initiative. In response
to the public notice initiating the media
modernization proceeding, some
commenters made proposals related to
the Commission’s leased access rules,
which require cable operators to set
aside channel capacity for commercial
use by unaffiliated video programmers.1
By addressing these proposals in this
FNPRM, we advance our efforts to
modernize our media regulations and
remove unnecessary requirements that
can impede competition and innovation
in the media marketplace.
2. We tentatively conclude that we
should vacate the 2008 Leased Access
Order, including the Further Notice of
Proposed Rulemaking issued in
conjunction with that order. This action
would enable the Commission to clean
up a longstanding backlog and position
us to freshly consider new revisions to
1 The leased access rules are in Subpart N of Part
76, which was listed in the Media Modernization
Public Notice as one of the principal rule parts that
pertains to media entities and that is the subject of
the media modernization review.
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the leased access rules.2 Due to the
Sixth Circuit proceedings as well as the
OMB disapproval, the rule changes
contained in the 2008 Leased Access
Order never went into effect. The leased
access rules that are currently in effect,
and that currently appear in the Code of
Federal Regulations, are those that were
in existence prior to the 2008 Leased
Access Order. Accordingly, vacating the
2008 Leased Access Order would not
have any impact on any party’s
compliance with or expectations
concerning the leased access
requirements.
3. In making this tentative conclusion,
we note the concerns the Sixth Circuit
expressed in its Stay Order regarding
the leased access rules that were
adopted in the 2008 Leased Access
Order, including ‘‘that NCTA has raised
some substantial appellate issues.’’ The
Sixth Circuit determined that a stay of
the 2008 Leased Access Order was
justified due to ‘‘[t]he balance of the
harms and the public interest, as well as
NCTA’s potential of success on the
merits.’’ The Sixth Circuit also noted
NCTA’s argument that cable operators
would suffer irreparable harm absent a
stay because the new leased access rate
formula adopted in the order would set
leased access rates at an unreasonably
low level, which would lead to more
leased access requests that would
displace other programming, ultimately
leading to dissatisfied cable customers.
4. Further support for our tentative
finding that we should vacate the 2008
Leased Access Order arises from the
concerns about the paperwork burden
set forth in the OMB Notice. OMB
detailed five ways in which certain
requirements adopted in the order were
inconsistent with the PRA. OMB
specifically cited the Commission’s
failure to demonstrate the need for the
more burdensome requirements
adopted, its failure to demonstrate that
it had taken reasonable steps to
minimize the burdens, and its failure to
provide reasonable protection for
proprietary and confidential
information. Some commenters in the
media modernization proceeding agree
with OMB that the 2008 Leased Access
Order failed to comply with the PRA.
5. We also tentatively find that
vacating the 2008 Leased Access Order
would be consistent with the goal of the
Commission’s Modernization of Media
Regulation Initiative to remove rules
that are outdated or no longer justified
2 If we vacate the 2008 Leased Access Order, we
will subsequently dismiss as moot the NCTA FCC
Stay Request (asking the Commission to stay the
2008 Leased Access Order) and the TVC Recon
Petition (seeking reconsideration of the 2008 Leased
Access Order).
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by market realities. Because of the
concerns raised in the Sixth Circuit Stay
Order and the OMB Notice, the
significant amount of time that has
passed since the 2008 Leased Access
Order was adopted and became subject
to a stay, the significant amount of time
that the cable industry and programmers
have remained subject to the preexisting leased access rules during the
pendency of the stay, and the very small
number of leased access disputes
brought before the Commission in
recent years,3 we tentatively find that
there is no sound policy basis for the
rules adopted in the 2008 order at this
point. For all these reasons, rather than
proceeding with the pending judicial
review of the 2008 Leased Access Order
that has now been stayed for a decade,
we tentatively conclude that a better
approach would be for the Commission
to vacate the 2008 Leased Access Order
and consider potential rule revisions
anew.
6. We seek comment on our tentative
conclusions. Is there any policy
justification for not vacating the entire
order? Is there any policy justification
for retaining any particular rules
adopted therein? Parties urging us not to
vacate the entire order or particular
rules should specify how the
Commission should overcome both the
judicial concerns noted in the Sixth
Circuit Stay Order and those raised in
the OMB Notice. We also ask parties to
address any benefits associated with the
2008 rules and whether these benefits
outweigh the costs.
7. We next seek comment on any
updates and improvements we should
make to our existing leased access rules.
The stated purpose of the leased access
statute ‘‘is to promote competition in
the delivery of diverse sources of video
programming and to assure that the
widest possible diversity of information
sources are made available to the public
from cable systems in a manner
consistent with growth and
development of cable systems.’’ The
statute also specifies that the price,
terms, and conditions for commercial
leased access should be ‘‘at least
sufficient to assure that such use will
not adversely affect the operation,
financial condition, or market
development of the cable system.’’ We
note that the video distribution
marketplace has become much more
competitive since Congress first
established the leased access regime in
1984. For example, at that time, direct
broadcast satellite (DBS) service was not
3 The Commission currently adjudicates an
average of less than one leased access dispute per
year.
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available to consumers as an alternative
to cable. While consumers previously
had access to only one pay television
service, today they have access to
multiple pay television services as well
as online video programming. In
addition, the number of channels
offered by cable operators has increased.
8. Against this backdrop, we invite
comment on the current state of the
leased access marketplace generally and
on whether, and if so how, the
prevalence of alternative means of video
distribution should influence our
actions in this proceeding. How many
leased access programmers are currently
in existence, and is that number
increasing or decreasing? What portion
of a cable system’s programming
consists of leased access? Do the leased
access rules currently in effect facilitate
the successful leasing of time by leased
access programmers, and if not, what
issues do programmers experience? To
what extent do leased access
programmers continue to rely on cable
carriage versus alternative means of
distribution? Does the widespread
availability of DBS service today or the
proliferation of online video distributors
provide programmers, including leased
access programmers, with more options
for content distribution?
9. As discussed below, we also seek
comment on specific proposals raised in
the media modernization proceeding to
update and improve the Commission’s
existing leased access rules as well as on
any other proposals we should consider.
10. First, as supported by several
commenters in the media modernization
proceeding, we propose to revise
§ 76.970(i) of our rules to provide that
all cable operators, and not just those
that qualify as ‘‘small systems’’ under
that rule, are required to provide the
information specified in paragraph (i)(1)
only in response to a bona fide request
for leased access information from a
prospective leased access programmer.4
For purposes of the leased access rules
applicable to cable operators eligible for
small system relief,5 a bona fide request
for information is defined as a request
4 The 2008 Leased Access Order distinguished
between ‘‘requests for information’’ and ‘‘proposals
for leased access.’’ Had that order gone into effect,
it would have provided non-small cable systems
with three days to respond to a request for
information, whereas small cable systems would
have had 30 days to respond to a bona fide request
for information. All cable systems, regardless of
size, would have been required to respond to bona
fide leased access proposals within 10 days of
receipt.
5 For purposes of the leased access rules, a small
system is defined as either (i) a system that qualifies
as small under § 76.901(c) of the Commission’s
rules and is owned by a small cable company as
defined in § 76.901(e); or (ii) a system that has been
granted special relief.
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from a potential leased access
programmer that includes: ‘‘(i) The
desired length of a contract term; (ii)
The time slot desired; (iii) The
anticipated commencement date for
carriage; and (iv) The nature of the
programming.’’
11. Section 76.970(i)(1) directs cable
operators to provide prospective leased
access programmers with the following
information: ‘‘(i) How much of the
operator’s leased access set-aside
capacity is available; (ii) A complete
schedule of the operator’s full-time and
part-time leased access rates; (iii) Rates
associated with technical and studio
costs; and (iv) If specifically requested,
a sample leased access contract.’’
Current rules require operators of small
cable systems to provide the
information only in response to a bona
fide request from a prospective leased
access programmer, whereas other cable
system operators must provide the
information in response to any request
for leased access information.6 As a
result, some operators of systems that do
not qualify as small may spend a
significant amount of time compiling
information to respond to non-bona fide
leased access inquiries. These operators
are not permitted to ask prospective
leased access programmers for any
information before responding to a
leased access request, due to the
Commission’s concern that cable
operators otherwise could use requests
for information to discourage leasing
access.
12. We seek comment on our proposal
to extend the bona fide request
limitation to all leased access requests.
Is there any reason not to provide all
cable operators with the flexibility of
responding only to a bona fide request?
We ask commenters to provide
information on the costs that cable
operators currently face in responding
to non-bona fide leased access requests.
How often do cable operators receive
non-bona fide leased access requests,
and how much time does it take to
provide the required information in
response to such a request? Does the
bona fide request limitation that
currently applies to operators of small
cable systems in any way discourage
prospective leased access programmers,
including small programmers, from
seeking to lease access and if so, how?
If we extend the bona fide request
limitation to all leased access requests,
should we adopt any modifications to
6 We propose to correct § 76.970(i)(2) by replacing
the reference to ‘‘paragraph (h)(1) of this section,’’
which does not exist, with ‘‘paragraph (i)(1) of this
section.’’ All leased access requests are required to
be in writing and to specify the date on which the
request was sent to the cable operator.
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the current definition of a bona fide
request?
13. Second, we invite comment on
whether we should extend the time
within which cable operators must
provide prospective leased access
programmers with the information
specified in § 76.970(i)(1) of our rules.
Current rules require cable system
operators to provide the required
information ‘‘within 15 calendar days of
the date on which a request for leased
access information is made,’’ while
operators of systems that are subject to
small system relief must provide the
required information ‘‘within 30
calendar days of a bona fide request
from a prospective leased access
programmer.’’ We invite comment on
whether cable operators have found it
difficult to comply with the current
deadlines for providing the required
information, and if so, why. What steps
must cable operators take to compile the
information listed in § 76.970(i)(1) of the
Commission’s rules, and what costs do
cable operators face in doing so under
the current timeframe? Is the
information readily available to cable
operators? We also seek input on
whether leased access programmers
have found that the required
information is generally provided on a
timely basis in accordance with current
rules. If, as discussed above, we revise
our rules to provide that all cable
operators, and not just those with small
systems, are required to provide the
listed information only in response to a
bona fide request from a prospective
leased access programmer, then is there
any basis for extending the deadline to
provide the information?
14. NCTA asks the Commission to
provide cable operators with additional
time, such as 45 days, within which ‘‘to
respond to requests to lease time on
multiple systems.’’ Is a 45-day response
period reasonable for leased access
requests covering multiple systems, and
if not, what response time period is
appropriate? Is it necessary to also
provide additional response time for
single cable systems? Do leased access
requests typically involve multiple
systems or are single-system requests
often made? Would lengthening the
deadline serve as a deterrent to or create
a hardship for potential leased access
programmers? Should we maintain a
longer deadline for operators of small
cable systems as compared to other
cable operators?
15. Third, as urged by several
commenters in the media modernization
proceeding, we seek comment on
whether we should permit cable
operators to require leased access
programmers to pay a nominal
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application fee 7 and/or a deposit,8
which is currently prohibited. Cable
operators state that requiring a deposit
or a nominal application fee would
‘‘help defray the costs of gathering the
information necessary to calculate the
leased access rate and to respond to any
bona fide requests for leased access
capacity that never lead to an actual
leased access agreement.’’ In the past
the Commission has not supported the
collection of fees or deposits with
respect to leased access. In light of this
history, how should we consider the
impact of fees and deposits on interest,
accessibility and diversity in leased
access? Although the Commission
previously found that such fees and
deposits are not permissible, has
anything changed that may persuade us
that they are now a reasonable means of
covering the costs of responding to
leased access inquiries? If the
Commission permits fees, what criteria
should be used to determine whether an
application fee is nominal? Rather than
adopting rules governing what
constitutes a ‘‘nominal’’ application fee,
should the Commission evaluate such
fees on a case-by-case basis when
presented with a complaint that a
particular fee is not nominal? Similarly,
if we permit deposits, should we
establish rules regarding an appropriate
deposit amount, or alternatively,
evaluate deposits on a case-by-case
basis? If the Commission decides to
adopt rules, how should it decide
whether a deposit is reasonable? Should
the cable operator refund all or part of
the deposit if the leased access request
does not result in carriage?
16. We seek comment on whether it
would be preferable to permit a nominal
application fee or a deposit, or both, and
on the costs and benefits of each option.
If we adopt our proposal to require all
cable operators to respond only to bona
fide leased access requests, is there any
justification for requiring a deposit or
application fee? Would requiring a
deposit or application fee prior to
obtaining the information set forth in
§ 76.970(i)(1) dissuade potential leased
access programmers, particularly small
entities, from seeking to lease access?
Finally, should the Commission permit
all cable operators, or permit only small
cable operators, to require a nominal
application fee or deposit before the
7 By ‘‘nominal application fee,’’ we mean a
processing fee that would be collected and retained
by the cable operator regardless of whether the
request results in leased access carriage.
8 By ‘‘deposit,’’ we mean a potentially more
substantial fee that would be collected by the cable
operator and used to offset future payments (e.g.,
the first month’s payment) if the leased access
request results in carriage.
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operator responds to a leased access
request by providing the information set
forth in § 76.970(i)(1)? Any commenter
advocating that we permit only small
cable operators to require a nominal
application fee or deposit should
explain its rationale.
17. Fourth, we invite comment on
modifications to our procedures for
addressing leased access disputes.
Congress has provided the Commission
with authority to adjudicate leased
access disputes. Parties previously have
contacted Commission staff to express
confusion about inconsistencies
between the leased access dispute
resolution rule (§ 76.975) and the
Commission’s more general rule
governing complaints (§ 76.7).
Accordingly, to promote consistency
between the two rules, we propose to
revise § 76.975 of our rules as follows.
First, we propose to revise our
terminology by referencing an answer to
a petition, rather than a response to a
petition. Second, we propose that the
30-day timeframe for filing an answer to
a leased access petition should be
calculated from the date of service of the
petition, rather than the date on which
the petition was filed. Third, whereas
§ 76.975 currently does not include any
allowance for replies, we propose
adding a provision stating that replies to
answers must be filed within 15 days
after submission of the answer. Fourth,
we propose adding a statement that
§ 76.7 applies to petitions for relief filed
under § 76.975, unless otherwise
provided in § 76.975. We invite
comment on these proposals, which we
intend to alleviate any ongoing
confusion about how both §§ 76.7 and
76.975 govern leased access
proceedings. Is 15 days the appropriate
timeframe for submitting a reply to an
answer to a leased access petition? We
note that the general complaint-filing
rule provides 10 days for filing replies,
but it also provides only 20 days for
filing an answer, whereas the leased
access rule provides 30 days for an
answer. Are there any other changes we
should make to our rules in order to
make the adjudication of leased access
disputes more efficient?
18. Finally, we invite comment on
any other ways in which we should
modernize our leased access rules. For
example, are any new rules needed to
govern the relationship between leased
access programmers and cable
operators, such as a rule requiring cable
operators to provide programmers with
contact information for the person
responsible for leased access matters?
Should we adopt any new rules
governing leased access rates or parttime leased access? Commenters
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supporting additional rules governing
leased access rates should explain why
additional rate rules are needed and
what issues the rules should address.
We ask commenters to explain the
relative costs and benefits of any
additional proposals.
19. In seeking comment on updating
the FCC’s leased access rules, we also
seek comment on whether our rules
implicate First Amendment interests. If
so, what level of First Amendment
scrutiny is appropriate, and how does
that analysis apply to our existing rules
and the potential changes we seek
comment on here, in light of the
statutory obligations of section 612? In
this context, we also seek comment on
whether there have been any changes in
the video distribution market since
Congress and the FCC first addressed
these issues that are relevant to the First
Amendment analysis. For instance, are
there relevant changes in the
distribution market that we should now
consider? Is the FCC’s 2015 decision
regarding effective competition relevant
to this analysis?
20. As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA), the Commission has prepared an
Initial Regulatory Flexibility Analysis
(IRFA) concerning the possible
significant economic impact on small
entities by the policies and rules
proposed in the FNPRM. Written public
comments are requested on the IRFA.
Comments must be identified as
responses to the IRFA and must be filed
by the deadlines for comments provided
on the first page of the FNPRM. The
Commission will send a copy of the
FNPRM, including the IRFA, to the
Chief Counsel for Advocacy of the Small
Business Administration (SBA). In
summary, the FNPRM seeks to update
the Commission’s leased access rules as
part of its Modernization of Media
Regulation Initiative. First, it tentatively
concludes that we should vacate the
Commission’s 2008 Leased Access
Order, which the U.S. Court of Appeals
for the Sixth Circuit has stayed for a
decade in conjunction with several
judicial appeals of the order. Second, it
seeks input on the state of the leased
access marketplace generally and invites
comment on ways to modernize our
existing leased access rules. The
proposed action is authorized pursuant
to sections 4(i), 303, and 612 of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303, and
532. The types of small entities that may
be affected by the proposals contained
in the FNPRM fall within the following
categories: Cable Television Distribution
Services, Cable Companies and Systems
(Rate Regulation), Cable System
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Operators (Telecom Act Standard),
Cable and Other Subscription
Programming, Motion Picture and Video
Production, and Motion Picture and
Video Distribution. The projected
reporting, recordkeeping, and other
compliance requirements are: (1) A
tentative conclusion that we should
vacate the 2008 Leased Access Order;
(2) as suggested by commenters in
response to the Media Modernization
Public Notice, a proposal to require
cable operators to respond only to bona
fide requests from prospective leased
access programmers; (3) seeking
comment on other suggested changes to
leased access rules that were raised in
the media modernization proceeding,
including extending the timeframe for
providing responses to leased access
requests and permitting cable operators
to require leased access programmers to
pay a nominal application fee and/or a
deposit; and (4) seeking comment on
proposals to modify our procedures for
addressing leased access disputes. There
is no overlap with other regulations or
laws.
21. We note that the FNPRM
tentatively finds that vacating the 2008
Leased Access Order would be
consistent with the goal of the
Commission’s Modernization of Media
Regulation Initiative to remove rules
that are outdated or no longer justified
by market realities. It is within this
backdrop that the Commission
tentatively concludes that it should
vacate the 2008 Leased Access Order.
The FNPRM explains that further
support for our tentative finding that we
should vacate the 2008 Leased Access
Order arises from the concerns about the
paperwork burden set forth in the OMB
Notice, where OMB detailed five ways
in which certain requirements adopted
in the order were inconsistent with the
PRA.
22. Regarding specific proposals
involving the leased access rules, the
Commission invites comment on
alternative ways it can reduce burdens
on small entities. For example, the
Commission proposes to extend the
current bona fide request limitation,
which only applies to operators of small
cable systems, to all operators. The
FNPRM seeks information on whether
the current bona fide request limitation
in any way discourages prospective
leased access programmers, including
small programmers, from seeking to
lease access and if so, how. For
example, if prospective leased access
programmers indicate that they find it
difficult to prepare a request that
constitutes a ‘‘bona fide’’ request, the
Commission will consider such
difficulties in determining how to
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proceed. To the extent there is currently
any negative impact on prospective
leased access programmers, including
small programmers, the Commission
will weigh that impact in determining
how to proceed. The FNPRM also
considers the timeframe within which
cable operators must provide
prospective leased access programmers
with the information specified in
§ 76.970(i)(1) of the Commission’s rules.
The FNPRM considers whether, in the
alternative to adopting a single deadline
for all cable systems, it should instead
maintain a longer deadline for operators
of small cable systems. Such an
approach could minimize the impact of
the leased access rules on small cable
system operators. Similarly, in the
alternative to permitting all cable
operators to require a nominal
application fee or deposit before the
operator responds to a leased access
request by providing the information set
forth in § 76.970(i)(1), the FNPRM
considers whether it should permit only
small cable operators to do so. Such an
approach could ease burdens on small
cable operators. The FNPRM also
considers the impact of requiring a
deposit or application fee on small
programmers, by asking whether
potential leased access programmers,
particularly small entities, would be
dissuaded from seeking to lease access
if faced with a deposit or application
fee. The Commission will consider
responses to all of these issues in
determining how to proceed.
23. This document contains proposed
new or revised information collection
requirements, including the proposal
that all cable operators are required to
provide the information specified in
§ 76.970(i)(1) only in response to a bona
fide request from a prospective leased
access programmer, and the addition of
a provision governing replies to answers
to leased access complaints. The
Commission, as part of its continuing
effort to reduce paperwork burdens,
invites the general public and the Office
of Management and Budget (OMB) to
comment on the information collection
requirements contained in this
document, as required by the Paperwork
Reduction Act of 1995, Public Law 104–
13 (44 U.S.C. 3501–3520). In addition,
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107–198, see 44 U.S.C. 3506(c)(4),
the Commission seeks specific comment
on how it might ‘‘further reduce the
information collection burden for small
business concerns with fewer than 25
employees.’’
24. Permit-But-Disclose. This
proceeding shall be treated as a ‘‘permitbut-disclose’’ proceeding in accordance
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with the Commission’s ex parte rules.
Persons making ex parte presentations
must file a copy of any written
presentation or a memorandum
summarizing any oral presentation
within two business days after the
presentation (unless a different deadline
applicable to the Sunshine period
applies). Persons making oral ex parte
presentations are reminded that
memoranda summarizing the
presentation must (1) list all persons
attending or otherwise participating in
the meeting at which the ex parte
presentation was made, and (2)
summarize all data presented and
arguments made during the
presentation. If the presentation
consisted in whole or in part of the
presentation of data or arguments
already reflected in the presenter’s
written comments, memoranda or other
filings in the proceeding, the presenter
may provide citations to such data or
arguments in his or her prior comments,
memoranda, or other filings (specifying
the relevant page and/or paragraph
numbers where such data or arguments
can be found) in lieu of summarizing
them in the memorandum. Documents
shown or given to Commission staff
during ex parte meetings are deemed to
be written ex parte presentations and
must be filed consistent with rule
1.1206(b). In proceedings governed by
rule 1.49(f) or for which the
Commission has made available a
method of electronic filing, written ex
parte presentations and memoranda
summarizing oral ex parte
presentations, and all attachments
thereto, must be filed through the
electronic comment filing system
available for that proceeding, and must
be filed in their native format (e.g., .doc,
.xml, .ppt, searchable .pdf). Participants
in this proceeding should familiarize
themselves with the Commission’s ex
parte rules.
25. The proposed action is authorized
pursuant to sections 4(i), 303, and 612
of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303, and
532.
List of Subjects in 47 CFR Part 76
Administrative practice and
procedure, Cable television, Reporting
and recordkeeping requirements.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the
Secretary.
Proposed Rules
For the reasons discussed in the
preamble, the Federal Communications
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Frm 00055
Fmt 4702
Sfmt 4702
30643
Commission proposes to amend 47 CFR
part 76 as follows:
PART 76—MULTICHANNEL VIDEO
AND CABLE TELEVISION SERVICE
1. The authority citation for part 76
continues to read as follows:
■
Authority: 47 U.S.C. 151, 152, 153, 154,
301, 302, 302a, 303, 303a, 307, 308, 309, 312,
315, 317, 325, 338, 339, 340, 341, 503, 521,
522, 531, 532, 534, 535, 536, 537, 543, 544,
544a, 545, 548, 549, 552, 554, 556, 558, 560,
561, 571, 572, 573.
2. Amend § 76.970 by revising
paragraph (i)(1) and (2) to read as
follows:
■
§ 76.970
Commercial leased access rates.
*
*
*
*
*
(i)(1) Cable system operators shall
provide prospective leased access
programmers with the following
information within 15 calendar days of
the date on which a bona fide request
for leased access information is made:
(i) How much of the operator’s leased
access set-aside capacity is available;
(ii) A complete schedule of the
operator’s full-time and part-time leased
access rates;
(iii) Rates associated with technical
and studio costs; and
(iv) If specifically requested, a sample
leased access contract.
(2) Operators of systems subject to
small system relief shall provide the
information required in paragraph (i)(1)
of this section within 30 calendar days
of a bona fide request from a prospective
leased access programmer. For these
purposes, systems subject to small
system relief are systems that either:
(i) Qualify as small systems under
§ 76.901(c) and are owned by a small
cable company as defined under
§ 76.901(e); or
(ii) Have been granted special relief.
*
*
*
*
*
■ 3. Amend § 76.975 by revising
paragraph (e) and adding paragraph (i)
to read as follows:
§ 76.975 Commercial leased access
dispute resolution.
*
*
*
*
*
(e) The cable operator or other
respondent will have 30 days from
service of the petition to file an answer.
If a leased access rate is disputed, the
answer must show that the rate charged
is not higher than the maximum
permitted rate for such leased access,
and must be supported by the affidavit
of a responsible company official. If,
after an answer is submitted, the staff
finds a prima facie violation of our
rules, the staff may require a respondent
to produce additional information, or
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Federal Register / Vol. 83, No. 126 / Friday, June 29, 2018 / Proposed Rules
specify other procedures necessary for
resolution of the proceeding. Replies to
answers must be filed within fifteen (15)
days after submission of the answer.
*
*
*
*
*
(i) Section 76.7 applies to petitions for
relief filed under this section, except as
otherwise provided in this section.
[FR Doc. 2018–14014 Filed 6–28–18; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF DEFENSE
SUPPLEMENTARY INFORMATION:
Defense Acquisition Regulations
System
I. Background
DoD is proposing to amend the
DFARS to implement section 875(c) of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2017 (Pub.
L. 114–328). Section 875(c) requires
DoD to revise the DFARS to encourage
contractors to propose commercial or
non-Government standards and
industry-wide practices that meet the
intent of military specifications and
standards.
48 CFR Part 211
[Docket DARS–2018–0021]
RIN 0750–AJ23
Defense Federal Acquisition
Regulation Supplement: Use of
Commercial or Non-Government
Standards (DFARS Case 2017–D014)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
sradovich on DSK3GMQ082PROD with PROPOSALS
II. Discussion and Analysis
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS)
implement a section of the National
Defense Authorization Act for Fiscal
Year 2017 (Pub. L. 114–328), which
requires DoD to revise the DFARS to
encourage contractors to propose
commercial or non-Government
standards and industry-wide practices
that meet the intent of military
specifications and standards.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before
August 28, 2018, to be considered in the
formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2017–D014,
using any of the following methods:
Æ Federal eRulemaking Portal: https://
www.regulations.gov. Search for
‘‘DFARS Case 2017–D014.’’ Select
‘‘Comment Now’’ and follow the
instructions provided to submit a
comment. Please include ‘‘DFARS Case
2017–D014’’ on any attached
documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2017–D014 in the subject
line of the message.
Æ Fax: 571–372–6094.
Æ Mail: Defense Acquisition
Regulations System, Attn: Mr. Mark
Gomersall, OUSD(A&S)DPAP/DARS,
Room 3B941, 3060 Defense Pentagon,
Washington, DC 20301–3060.
SUMMARY:
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17:09 Jun 28, 2018
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Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
approximately 2 to 3 days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Mr.
Mark Gomersall, telephone 571–372–
6099.
DoD is proposing to amend DFARS
211.107(b) to require the use of Federal
Acquisition Regulation (FAR) provision
52.211–7, Alternatives to GovernmentUnique Standards, in DoD solicitations
and contracts that include military or
Government-unique specifications and
standards; and, in so doing, encourage
and permit offerors to propose
alternatives to Government-unique
standards using an existing FAR
provision.
The use of FAR provision 52.211–7 is
optional for agencies that report their
use of voluntary consensus standards to
the National Institute of Standards and
Technology using the categorical
reporting method. However, Office of
Management and Budget (OMB)
Circular A–119, Federal Participation in
the Development and Use of Voluntary
Consensus Standards and in Conformity
Assessment Activities, requires, at
paragraph 12.a.(4), that agencies using
the categorical method of reporting
method must ‘‘Enable potential offerors
to suggest voluntary consensus
standards that can replace Governmentunique standards.’’ Use of this existing
FAR provision will enable DoD to meet
the intent of section 875(c).
In response to OMB Circular A–119,
the National Institute of Standards and
Technology collects reports from
Federal Agencies on their use of
Government-unique standards, which is
reported annually to Congress. DoD
statistics used for that report do not
differentiate among the many different
PO 00000
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Fmt 4702
Sfmt 4702
types of Government-unique Standards.
The overriding conceptual approach is
to reduce Government reliance on
standards produced by Government
entities for their own use.
As a matter of existing policy, DoD
discourages the use of military
specifications and standards in
solicitations. As stated in DoD Directive
5000.01: ‘‘When using performancebased strategies, contract requirements
shall be stated in performance terms,
limiting the use of military
specifications and standards to
Government-unique requirements
only.’’ However, to meet the intent of
section 875(c) of the NDAA for FY 2017,
DoD is proposing to amend DFARS
211.107(b) to require the use of FAR
provision 52.211–7, Alternatives to
Government-Unique Standards, in DoD
solicitations and contracts that include
military or Government-unique
specifications and standards to
encourage and permit offerors to
propose alternatives to Governmentunique standards.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT) and Contracts for
Commercial Items, Including
Commercially Available Off-the-Shelf
(COTS) Items
The purpose of this rule is to
implement section 875(c) of the NDAA
for FY 2017, which requires DoD to
revise the DFARS to encourage
contractors to propose commercial or
non-Government standards and
industry-wide practices that meet the
intent of military specifications and
standards. DoD does not intend to apply
the requirements of section 875(c) to
solicitations for contracts valued at or
below the SAT or to contracts for
commercial items, including COTS
items, because such contracts do not
generally include or require use of
military or Government-unique
standards or specifications.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
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]]>Agencies
[Federal Register Volume 83, Number 126 (Friday, June 29, 2018)]
[Proposed Rules]
[Pages 30639-30644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14014]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MB Docket Nos. 07-42 and 17-105; FCC 18-80]
Leased Commercial Access; Modernization of Media Regulation
Initiative
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission seeks to update its leased
access rules as part of its Modernization of Media Regulation
Initiative. First, the Commission tentatively concludes that it should
vacate its 2008 Leased Access Order, which the U.S. Court of Appeals
for the Sixth Circuit has stayed for a decade in conjunction with
several judicial appeals of the order. Second, the Commission seeks
input on the state of the leased access marketplace generally and
invites comment on ways to modernize its existing leased access rules.
DATES: Comments are due on or before July 30, 2018; reply comments are
due on or before August 13, 2018.
ADDRESSES: You may submit comments, identified by MB Docket Nos. 18-80
and 17-105, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's website: https://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
Mail: Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail. All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: [email protected] or phone: (202) 418-
0530 or TTY: (202) 418-0432.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Diana Sokolow, [email protected], of the Policy
Division, Media Bureau, (202) 418-2120.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Further Notice of Proposed Rulemaking, FCC 18-80, adopted on June 7,
2018 and released on June 8, 2017. The full text is available for
public inspection and copying during regular business hours in the FCC
Reference Center, Federal Communications Commission, 445 12th Street
SW, Room CY-A257, Washington, DC 20554. This document will also be
available via ECFS at https://fjallfoss.fcc.gov/ecfs/. Documents will be
available electronically in ASCII, Microsoft Word, and/or Adobe
Acrobat. Alternative formats are available for people with disabilities
(Braille, large print, electronic files, audio format), by sending an
email to [email protected] or calling the Commission's Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
Synopsis
1. In this Further Notice of Proposed Rulemaking (FNPRM), we seek
to update our leased access rules as part of the Commission's
Modernization of Media Regulation Initiative. In response to the public
notice initiating the media modernization proceeding, some commenters
made proposals related to the Commission's leased access rules, which
require cable operators to set aside channel capacity for commercial
use by unaffiliated video programmers.\1\ By addressing these proposals
in this FNPRM, we advance our efforts to modernize our media
regulations and remove unnecessary requirements that can impede
competition and innovation in the media marketplace.
---------------------------------------------------------------------------
\1\ The leased access rules are in Subpart N of Part 76, which
was listed in the Media Modernization Public Notice as one of the
principal rule parts that pertains to media entities and that is the
subject of the media modernization review.
---------------------------------------------------------------------------
2. We tentatively conclude that we should vacate the 2008 Leased
Access Order, including the Further Notice of Proposed Rulemaking
issued in conjunction with that order. This action would enable the
Commission to clean up a longstanding backlog and position us to
freshly consider new revisions to
[[Page 30640]]
the leased access rules.\2\ Due to the Sixth Circuit proceedings as
well as the OMB disapproval, the rule changes contained in the 2008
Leased Access Order never went into effect. The leased access rules
that are currently in effect, and that currently appear in the Code of
Federal Regulations, are those that were in existence prior to the 2008
Leased Access Order. Accordingly, vacating the 2008 Leased Access Order
would not have any impact on any party's compliance with or
expectations concerning the leased access requirements.
---------------------------------------------------------------------------
\2\ If we vacate the 2008 Leased Access Order, we will
subsequently dismiss as moot the NCTA FCC Stay Request (asking the
Commission to stay the 2008 Leased Access Order) and the TVC Recon
Petition (seeking reconsideration of the 2008 Leased Access Order).
---------------------------------------------------------------------------
3. In making this tentative conclusion, we note the concerns the
Sixth Circuit expressed in its Stay Order regarding the leased access
rules that were adopted in the 2008 Leased Access Order, including
``that NCTA has raised some substantial appellate issues.'' The Sixth
Circuit determined that a stay of the 2008 Leased Access Order was
justified due to ``[t]he balance of the harms and the public interest,
as well as NCTA's potential of success on the merits.'' The Sixth
Circuit also noted NCTA's argument that cable operators would suffer
irreparable harm absent a stay because the new leased access rate
formula adopted in the order would set leased access rates at an
unreasonably low level, which would lead to more leased access requests
that would displace other programming, ultimately leading to
dissatisfied cable customers.
4. Further support for our tentative finding that we should vacate
the 2008 Leased Access Order arises from the concerns about the
paperwork burden set forth in the OMB Notice. OMB detailed five ways in
which certain requirements adopted in the order were inconsistent with
the PRA. OMB specifically cited the Commission's failure to demonstrate
the need for the more burdensome requirements adopted, its failure to
demonstrate that it had taken reasonable steps to minimize the burdens,
and its failure to provide reasonable protection for proprietary and
confidential information. Some commenters in the media modernization
proceeding agree with OMB that the 2008 Leased Access Order failed to
comply with the PRA.
5. We also tentatively find that vacating the 2008 Leased Access
Order would be consistent with the goal of the Commission's
Modernization of Media Regulation Initiative to remove rules that are
outdated or no longer justified by market realities. Because of the
concerns raised in the Sixth Circuit Stay Order and the OMB Notice, the
significant amount of time that has passed since the 2008 Leased Access
Order was adopted and became subject to a stay, the significant amount
of time that the cable industry and programmers have remained subject
to the pre-existing leased access rules during the pendency of the
stay, and the very small number of leased access disputes brought
before the Commission in recent years,\3\ we tentatively find that
there is no sound policy basis for the rules adopted in the 2008 order
at this point. For all these reasons, rather than proceeding with the
pending judicial review of the 2008 Leased Access Order that has now
been stayed for a decade, we tentatively conclude that a better
approach would be for the Commission to vacate the 2008 Leased Access
Order and consider potential rule revisions anew.
---------------------------------------------------------------------------
\3\ The Commission currently adjudicates an average of less than
one leased access dispute per year.
---------------------------------------------------------------------------
6. We seek comment on our tentative conclusions. Is there any
policy justification for not vacating the entire order? Is there any
policy justification for retaining any particular rules adopted
therein? Parties urging us not to vacate the entire order or particular
rules should specify how the Commission should overcome both the
judicial concerns noted in the Sixth Circuit Stay Order and those
raised in the OMB Notice. We also ask parties to address any benefits
associated with the 2008 rules and whether these benefits outweigh the
costs.
7. We next seek comment on any updates and improvements we should
make to our existing leased access rules. The stated purpose of the
leased access statute ``is to promote competition in the delivery of
diverse sources of video programming and to assure that the widest
possible diversity of information sources are made available to the
public from cable systems in a manner consistent with growth and
development of cable systems.'' The statute also specifies that the
price, terms, and conditions for commercial leased access should be
``at least sufficient to assure that such use will not adversely affect
the operation, financial condition, or market development of the cable
system.'' We note that the video distribution marketplace has become
much more competitive since Congress first established the leased
access regime in 1984. For example, at that time, direct broadcast
satellite (DBS) service was not available to consumers as an
alternative to cable. While consumers previously had access to only one
pay television service, today they have access to multiple pay
television services as well as online video programming. In addition,
the number of channels offered by cable operators has increased.
8. Against this backdrop, we invite comment on the current state of
the leased access marketplace generally and on whether, and if so how,
the prevalence of alternative means of video distribution should
influence our actions in this proceeding. How many leased access
programmers are currently in existence, and is that number increasing
or decreasing? What portion of a cable system's programming consists of
leased access? Do the leased access rules currently in effect
facilitate the successful leasing of time by leased access programmers,
and if not, what issues do programmers experience? To what extent do
leased access programmers continue to rely on cable carriage versus
alternative means of distribution? Does the widespread availability of
DBS service today or the proliferation of online video distributors
provide programmers, including leased access programmers, with more
options for content distribution?
9. As discussed below, we also seek comment on specific proposals
raised in the media modernization proceeding to update and improve the
Commission's existing leased access rules as well as on any other
proposals we should consider.
10. First, as supported by several commenters in the media
modernization proceeding, we propose to revise Sec. 76.970(i) of our
rules to provide that all cable operators, and not just those that
qualify as ``small systems'' under that rule, are required to provide
the information specified in paragraph (i)(1) only in response to a
bona fide request for leased access information from a prospective
leased access programmer.\4\ For purposes of the leased access rules
applicable to cable operators eligible for small system relief,\5\ a
bona fide request for information is defined as a request
[[Page 30641]]
from a potential leased access programmer that includes: ``(i) The
desired length of a contract term; (ii) The time slot desired; (iii)
The anticipated commencement date for carriage; and (iv) The nature of
the programming.''
---------------------------------------------------------------------------
\4\ The 2008 Leased Access Order distinguished between
``requests for information'' and ``proposals for leased access.''
Had that order gone into effect, it would have provided non-small
cable systems with three days to respond to a request for
information, whereas small cable systems would have had 30 days to
respond to a bona fide request for information. All cable systems,
regardless of size, would have been required to respond to bona fide
leased access proposals within 10 days of receipt.
\5\ For purposes of the leased access rules, a small system is
defined as either (i) a system that qualifies as small under Sec.
76.901(c) of the Commission's rules and is owned by a small cable
company as defined in Sec. 76.901(e); or (ii) a system that has
been granted special relief.
---------------------------------------------------------------------------
11. Section 76.970(i)(1) directs cable operators to provide
prospective leased access programmers with the following information:
``(i) How much of the operator's leased access set-aside capacity is
available; (ii) A complete schedule of the operator's full-time and
part-time leased access rates; (iii) Rates associated with technical
and studio costs; and (iv) If specifically requested, a sample leased
access contract.'' Current rules require operators of small cable
systems to provide the information only in response to a bona fide
request from a prospective leased access programmer, whereas other
cable system operators must provide the information in response to any
request for leased access information.\6\ As a result, some operators
of systems that do not qualify as small may spend a significant amount
of time compiling information to respond to non-bona fide leased access
inquiries. These operators are not permitted to ask prospective leased
access programmers for any information before responding to a leased
access request, due to the Commission's concern that cable operators
otherwise could use requests for information to discourage leasing
access.
---------------------------------------------------------------------------
\6\ We propose to correct Sec. 76.970(i)(2) by replacing the
reference to ``paragraph (h)(1) of this section,'' which does not
exist, with ``paragraph (i)(1) of this section.'' All leased access
requests are required to be in writing and to specify the date on
which the request was sent to the cable operator.
---------------------------------------------------------------------------
12. We seek comment on our proposal to extend the bona fide request
limitation to all leased access requests. Is there any reason not to
provide all cable operators with the flexibility of responding only to
a bona fide request? We ask commenters to provide information on the
costs that cable operators currently face in responding to non-bona
fide leased access requests. How often do cable operators receive non-
bona fide leased access requests, and how much time does it take to
provide the required information in response to such a request? Does
the bona fide request limitation that currently applies to operators of
small cable systems in any way discourage prospective leased access
programmers, including small programmers, from seeking to lease access
and if so, how? If we extend the bona fide request limitation to all
leased access requests, should we adopt any modifications to the
current definition of a bona fide request?
13. Second, we invite comment on whether we should extend the time
within which cable operators must provide prospective leased access
programmers with the information specified in Sec. 76.970(i)(1) of our
rules. Current rules require cable system operators to provide the
required information ``within 15 calendar days of the date on which a
request for leased access information is made,'' while operators of
systems that are subject to small system relief must provide the
required information ``within 30 calendar days of a bona fide request
from a prospective leased access programmer.'' We invite comment on
whether cable operators have found it difficult to comply with the
current deadlines for providing the required information, and if so,
why. What steps must cable operators take to compile the information
listed in Sec. 76.970(i)(1) of the Commission's rules, and what costs
do cable operators face in doing so under the current timeframe? Is the
information readily available to cable operators? We also seek input on
whether leased access programmers have found that the required
information is generally provided on a timely basis in accordance with
current rules. If, as discussed above, we revise our rules to provide
that all cable operators, and not just those with small systems, are
required to provide the listed information only in response to a bona
fide request from a prospective leased access programmer, then is there
any basis for extending the deadline to provide the information?
14. NCTA asks the Commission to provide cable operators with
additional time, such as 45 days, within which ``to respond to requests
to lease time on multiple systems.'' Is a 45-day response period
reasonable for leased access requests covering multiple systems, and if
not, what response time period is appropriate? Is it necessary to also
provide additional response time for single cable systems? Do leased
access requests typically involve multiple systems or are single-system
requests often made? Would lengthening the deadline serve as a
deterrent to or create a hardship for potential leased access
programmers? Should we maintain a longer deadline for operators of
small cable systems as compared to other cable operators?
15. Third, as urged by several commenters in the media
modernization proceeding, we seek comment on whether we should permit
cable operators to require leased access programmers to pay a nominal
application fee \7\ and/or a deposit,\8\ which is currently prohibited.
Cable operators state that requiring a deposit or a nominal application
fee would ``help defray the costs of gathering the information
necessary to calculate the leased access rate and to respond to any
bona fide requests for leased access capacity that never lead to an
actual leased access agreement.'' In the past the Commission has not
supported the collection of fees or deposits with respect to leased
access. In light of this history, how should we consider the impact of
fees and deposits on interest, accessibility and diversity in leased
access? Although the Commission previously found that such fees and
deposits are not permissible, has anything changed that may persuade us
that they are now a reasonable means of covering the costs of
responding to leased access inquiries? If the Commission permits fees,
what criteria should be used to determine whether an application fee is
nominal? Rather than adopting rules governing what constitutes a
``nominal'' application fee, should the Commission evaluate such fees
on a case-by-case basis when presented with a complaint that a
particular fee is not nominal? Similarly, if we permit deposits, should
we establish rules regarding an appropriate deposit amount, or
alternatively, evaluate deposits on a case-by-case basis? If the
Commission decides to adopt rules, how should it decide whether a
deposit is reasonable? Should the cable operator refund all or part of
the deposit if the leased access request does not result in carriage?
---------------------------------------------------------------------------
\7\ By ``nominal application fee,'' we mean a processing fee
that would be collected and retained by the cable operator
regardless of whether the request results in leased access carriage.
\8\ By ``deposit,'' we mean a potentially more substantial fee
that would be collected by the cable operator and used to offset
future payments (e.g., the first month's payment) if the leased
access request results in carriage.
---------------------------------------------------------------------------
16. We seek comment on whether it would be preferable to permit a
nominal application fee or a deposit, or both, and on the costs and
benefits of each option. If we adopt our proposal to require all cable
operators to respond only to bona fide leased access requests, is there
any justification for requiring a deposit or application fee? Would
requiring a deposit or application fee prior to obtaining the
information set forth in Sec. 76.970(i)(1) dissuade potential leased
access programmers, particularly small entities, from seeking to lease
access? Finally, should the Commission permit all cable operators, or
permit only small cable operators, to require a nominal application fee
or deposit before the
[[Page 30642]]
operator responds to a leased access request by providing the
information set forth in Sec. 76.970(i)(1)? Any commenter advocating
that we permit only small cable operators to require a nominal
application fee or deposit should explain its rationale.
17. Fourth, we invite comment on modifications to our procedures
for addressing leased access disputes. Congress has provided the
Commission with authority to adjudicate leased access disputes. Parties
previously have contacted Commission staff to express confusion about
inconsistencies between the leased access dispute resolution rule
(Sec. 76.975) and the Commission's more general rule governing
complaints (Sec. 76.7). Accordingly, to promote consistency between
the two rules, we propose to revise Sec. 76.975 of our rules as
follows. First, we propose to revise our terminology by referencing an
answer to a petition, rather than a response to a petition. Second, we
propose that the 30-day timeframe for filing an answer to a leased
access petition should be calculated from the date of service of the
petition, rather than the date on which the petition was filed. Third,
whereas Sec. 76.975 currently does not include any allowance for
replies, we propose adding a provision stating that replies to answers
must be filed within 15 days after submission of the answer. Fourth, we
propose adding a statement that Sec. 76.7 applies to petitions for
relief filed under Sec. 76.975, unless otherwise provided in Sec.
76.975. We invite comment on these proposals, which we intend to
alleviate any ongoing confusion about how both Sec. Sec. 76.7 and
76.975 govern leased access proceedings. Is 15 days the appropriate
timeframe for submitting a reply to an answer to a leased access
petition? We note that the general complaint-filing rule provides 10
days for filing replies, but it also provides only 20 days for filing
an answer, whereas the leased access rule provides 30 days for an
answer. Are there any other changes we should make to our rules in
order to make the adjudication of leased access disputes more
efficient?
18. Finally, we invite comment on any other ways in which we should
modernize our leased access rules. For example, are any new rules
needed to govern the relationship between leased access programmers and
cable operators, such as a rule requiring cable operators to provide
programmers with contact information for the person responsible for
leased access matters? Should we adopt any new rules governing leased
access rates or part-time leased access? Commenters supporting
additional rules governing leased access rates should explain why
additional rate rules are needed and what issues the rules should
address. We ask commenters to explain the relative costs and benefits
of any additional proposals.
19. In seeking comment on updating the FCC's leased access rules,
we also seek comment on whether our rules implicate First Amendment
interests. If so, what level of First Amendment scrutiny is
appropriate, and how does that analysis apply to our existing rules and
the potential changes we seek comment on here, in light of the
statutory obligations of section 612? In this context, we also seek
comment on whether there have been any changes in the video
distribution market since Congress and the FCC first addressed these
issues that are relevant to the First Amendment analysis. For instance,
are there relevant changes in the distribution market that we should
now consider? Is the FCC's 2015 decision regarding effective
competition relevant to this analysis?
20. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared an Initial Regulatory
Flexibility Analysis (IRFA) concerning the possible significant
economic impact on small entities by the policies and rules proposed in
the FNPRM. Written public comments are requested on the IRFA. Comments
must be identified as responses to the IRFA and must be filed by the
deadlines for comments provided on the first page of the FNPRM. The
Commission will send a copy of the FNPRM, including the IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration (SBA).
In summary, the FNPRM seeks to update the Commission's leased access
rules as part of its Modernization of Media Regulation Initiative.
First, it tentatively concludes that we should vacate the Commission's
2008 Leased Access Order, which the U.S. Court of Appeals for the Sixth
Circuit has stayed for a decade in conjunction with several judicial
appeals of the order. Second, it seeks input on the state of the leased
access marketplace generally and invites comment on ways to modernize
our existing leased access rules. The proposed action is authorized
pursuant to sections 4(i), 303, and 612 of the Communications Act of
1934, as amended, 47 U.S.C. 154(i), 303, and 532. The types of small
entities that may be affected by the proposals contained in the FNPRM
fall within the following categories: Cable Television Distribution
Services, Cable Companies and Systems (Rate Regulation), Cable System
Operators (Telecom Act Standard), Cable and Other Subscription
Programming, Motion Picture and Video Production, and Motion Picture
and Video Distribution. The projected reporting, recordkeeping, and
other compliance requirements are: (1) A tentative conclusion that we
should vacate the 2008 Leased Access Order; (2) as suggested by
commenters in response to the Media Modernization Public Notice, a
proposal to require cable operators to respond only to bona fide
requests from prospective leased access programmers; (3) seeking
comment on other suggested changes to leased access rules that were
raised in the media modernization proceeding, including extending the
timeframe for providing responses to leased access requests and
permitting cable operators to require leased access programmers to pay
a nominal application fee and/or a deposit; and (4) seeking comment on
proposals to modify our procedures for addressing leased access
disputes. There is no overlap with other regulations or laws.
21. We note that the FNPRM tentatively finds that vacating the 2008
Leased Access Order would be consistent with the goal of the
Commission's Modernization of Media Regulation Initiative to remove
rules that are outdated or no longer justified by market realities. It
is within this backdrop that the Commission tentatively concludes that
it should vacate the 2008 Leased Access Order. The FNPRM explains that
further support for our tentative finding that we should vacate the
2008 Leased Access Order arises from the concerns about the paperwork
burden set forth in the OMB Notice, where OMB detailed five ways in
which certain requirements adopted in the order were inconsistent with
the PRA.
22. Regarding specific proposals involving the leased access rules,
the Commission invites comment on alternative ways it can reduce
burdens on small entities. For example, the Commission proposes to
extend the current bona fide request limitation, which only applies to
operators of small cable systems, to all operators. The FNPRM seeks
information on whether the current bona fide request limitation in any
way discourages prospective leased access programmers, including small
programmers, from seeking to lease access and if so, how. For example,
if prospective leased access programmers indicate that they find it
difficult to prepare a request that constitutes a ``bona fide''
request, the Commission will consider such difficulties in determining
how to
[[Page 30643]]
proceed. To the extent there is currently any negative impact on
prospective leased access programmers, including small programmers, the
Commission will weigh that impact in determining how to proceed. The
FNPRM also considers the timeframe within which cable operators must
provide prospective leased access programmers with the information
specified in Sec. 76.970(i)(1) of the Commission's rules. The FNPRM
considers whether, in the alternative to adopting a single deadline for
all cable systems, it should instead maintain a longer deadline for
operators of small cable systems. Such an approach could minimize the
impact of the leased access rules on small cable system operators.
Similarly, in the alternative to permitting all cable operators to
require a nominal application fee or deposit before the operator
responds to a leased access request by providing the information set
forth in Sec. 76.970(i)(1), the FNPRM considers whether it should
permit only small cable operators to do so. Such an approach could ease
burdens on small cable operators. The FNPRM also considers the impact
of requiring a deposit or application fee on small programmers, by
asking whether potential leased access programmers, particularly small
entities, would be dissuaded from seeking to lease access if faced with
a deposit or application fee. The Commission will consider responses to
all of these issues in determining how to proceed.
23. This document contains proposed new or revised information
collection requirements, including the proposal that all cable
operators are required to provide the information specified in Sec.
76.970(i)(1) only in response to a bona fide request from a prospective
leased access programmer, and the addition of a provision governing
replies to answers to leased access complaints. The Commission, as part
of its continuing effort to reduce paperwork burdens, invites the
general public and the Office of Management and Budget (OMB) to comment
on the information collection requirements contained in this document,
as required by the Paperwork Reduction Act of 1995, Public Law 104-13
(44 U.S.C. 3501-3520). In addition, pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4), the Commission seeks specific comment on how it might
``further reduce the information collection burden for small business
concerns with fewer than 25 employees.''
24. Permit-But-Disclose. This proceeding shall be treated as a
``permit-but-disclose'' proceeding in accordance with the Commission's
ex parte rules. Persons making ex parte presentations must file a copy
of any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a
different deadline applicable to the Sunshine period applies). Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentation must (1) list all persons attending or
otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and
arguments made during the presentation. If the presentation consisted
in whole or in part of the presentation of data or arguments already
reflected in the presenter's written comments, memoranda or other
filings in the proceeding, the presenter may provide citations to such
data or arguments in his or her prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule 1.1206(b). In proceedings governed by
rule 1.49(f) or for which the Commission has made available a method of
electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding, and must be filed in their native format (e.g.,
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding
should familiarize themselves with the Commission's ex parte rules.
25. The proposed action is authorized pursuant to sections 4(i),
303, and 612 of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 303, and 532.
List of Subjects in 47 CFR Part 76
Administrative practice and procedure, Cable television, Reporting
and recordkeeping requirements.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 76 as follows:
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
0
1. The authority citation for part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303,
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503,
521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548,
549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
0
2. Amend Sec. 76.970 by revising paragraph (i)(1) and (2) to read as
follows:
Sec. 76.970 Commercial leased access rates.
* * * * *
(i)(1) Cable system operators shall provide prospective leased
access programmers with the following information within 15 calendar
days of the date on which a bona fide request for leased access
information is made:
(i) How much of the operator's leased access set-aside capacity is
available;
(ii) A complete schedule of the operator's full-time and part-time
leased access rates;
(iii) Rates associated with technical and studio costs; and
(iv) If specifically requested, a sample leased access contract.
(2) Operators of systems subject to small system relief shall
provide the information required in paragraph (i)(1) of this section
within 30 calendar days of a bona fide request from a prospective
leased access programmer. For these purposes, systems subject to small
system relief are systems that either:
(i) Qualify as small systems under Sec. 76.901(c) and are owned by
a small cable company as defined under Sec. 76.901(e); or
(ii) Have been granted special relief.
* * * * *
0
3. Amend Sec. 76.975 by revising paragraph (e) and adding paragraph
(i) to read as follows:
Sec. 76.975 Commercial leased access dispute resolution.
* * * * *
(e) The cable operator or other respondent will have 30 days from
service of the petition to file an answer. If a leased access rate is
disputed, the answer must show that the rate charged is not higher than
the maximum permitted rate for such leased access, and must be
supported by the affidavit of a responsible company official. If, after
an answer is submitted, the staff finds a prima facie violation of our
rules, the staff may require a respondent to produce additional
information, or
[[Page 30644]]
specify other procedures necessary for resolution of the proceeding.
Replies to answers must be filed within fifteen (15) days after
submission of the answer.
* * * * *
(i) Section 76.7 applies to petitions for relief filed under this
section, except as otherwise provided in this section.
[FR Doc. 2018-14014 Filed 6-28-18; 8:45 am]
BILLING CODE 6712-01-P
